The U.S. military isn’t immune from 2023’s prosecutorial angst, and it shouldn’t be. Given the enormous power prosecutors wield as gatekeepers to courts – and the profound effect criminal investigations and charges have on individuals, politics, and U.S. constitutional democracy – scrutiny of prosecutorial independence and impartiality is warranted in the civilian and military justice systems.
Indeed, prosecutors in the military deserve even greater attention, given the detrimental effect unjust military prosecutions and failures to prosecute meritorious cases can have on good order and discipline, and consequently national security. And while most civilian prosecutors are elected or appointed and hence somewhat accountable for their decisions, there’s been near zero accountability for military prosecutors, along with little true independence and impartiality regarding their prosecutorial decision-making. Reforms that just took effect at the end of 2023 mark an important step in the right direction, but further reforms – and careful attention to how they are implemented – will be necessary to make military justice more just, in greater alignment with due process and fair trial guarantees.
An Important Step Toward Prosecutorial Independence and Impartiality
The reason that military officers vested with tremendous prosecutorial authority over service members – to bring criminal charges, make plea bargains, or ignore allegations of misconduct – have long been unaccountable is because up to now, they literally have run the whole show. Since before the United States’ founding, senior military commanders, not lawyers, have wielded exclusive prosecutorial authority over members of their own units (the president and service secretaries can court-martial – criminally prosecute – troops too, though that’s rare).
Far from reinforcing independent and impartial decision-making, such historical vesting of exclusive prosecutorial power in the military’s hierarchical apexes contributed to dysfunction. From the disturbing racial disparities that continue to plague military justice, to the abject failure to hold sexual perpetrators to account, the military’s criminal justice system has long produced unjust results due to such defective structure. Unsurprisingly, inherent conflicts of interest and vulnerabilities to inappropriate influences exist in a system that vests in powerful commanders sole decision-making authority over whom in their units to criminally charge (and whom to protect from charges), for what crimes, and the power to pick each jury.
Simply put, independence and impartiality, bedrock traits of modern and fair criminal justice systems, have long been missing in action. Yet change is in the air. After over one hundred years of agitation for reform, a Rubicon was just quietly crossed on Dec. 28, 2023, that portends a more fair and just military justice system.
In a large step toward prosecutorial independence and impartiality, Congress – finally fed up after decades of the military’s sexual assault epidemic destroyed trust in commanders – used the FY2022 military spending bill to take around a dozen serious crimes, including sexual assault and murder, away from commanders’ prosecutorial control (effective end of 2023). Congress instead vested the disposition of allegations of these offenses in military lawyers who, per the new law, now work for civilian service secretaries, not military leaders. These uniformed lawyers are not in the accused’s or victim’s chain of command, specifically to bolster independence, both real and perceived, from command pressures. While commanders may provide their opinions as to prosecutions of their soldiers, it is the new “special trial counsel” who will make the ultimate prosecutorial decision.
The criticality and necessity of commanders’ loss of power in this area cannot be overstated, nor should the new prosecutors’ independence from command pressure be undervalued. Numerous reports over the last decade revealed that service members have little confidence in commanders’ ability to fairly handle sexual assault and other crimes, thus contributing to underreporting, impunity, and unhealthy military units. This shift of prosecutorial power away to military lawyers is designed to lead to better prosecutorial decisions based on evidentiary facts as evaluated by experienced lawyers, and to bolster confidence that these decisions are made uninfluenced by improper factors, starting with command influence.
But Reform Comes with an Asterisk
There’s a large asterisk that comes with this transformation. An insular criminal justice system that works within the military, operated by military members, will always be less than what service members deserve regarding fair trial rights, independence, and impartiality. Given the declining number of courts-martial and improving modern communication technology, the optimal solution is to transfer all military cases to federal court – as have some European countries whose adherence to fair trial rights is more advanced than in the United States. Compared to military officers, who depend on the Senate for promotions, U.S. attorneys and their assistants are more independent from improper military command pressures, as well as from political ones, and are vastly more experienced.
Absent that utopian best-case scenario, Congress should continue working on improving this new and unnecessarily complicated military justice system that’s just gone into effect. Many discrete improvements are needed, such as requiring unanimous verdicts (the military is the only U.S. criminal jurisdiction without them), and completely eliminating the convening authority’s (commanders’) role in court-martial member selection.
More importantly than such changes on the margins, it must be noted that the current shift of prosecutorial discretion to military lawyers is woefully incomplete.
First, the new lawyer-prosecutors, structurally more independent, impartial, and supposedly experienced, should be handling the disposition of all criminal allegations, not just for a little over a dozen “covered” offenses. Commanders who cannot be trusted (because they are structurally conflicted due to their relationship to the accused and the mission) to deal with murder, rape, and the other crimes Congress took from them, likewise shouldn’t be trusted to decide cases of burglary, arson, desertion, mail theft, malingering, and the many other serious offenses that Congress inexplicably left with commanders to decide (explicable as a result of political sausage-making). Either commanders are the right officers to make criminal prosecutorial decisions, or they aren’t (it’s the latter).
This new dual-track system based on offense, one track handled by structurally-conflicted commanders and the other by more structurally-independent military lawyers, raises serious due process and plain old common-sense concerns. This bifurcation of prosecutorial power is particularly troubling given that Congress left military-unique crimes, many possessing far greater ambiguity than due process allows for civilian crimes – for example, that inherent in the crime “conduct prejudicial to good order and discipline” – to commanders to prosecute, despite evidence that courts-martial for such crimes are riddled with racial disparities. Of course they are: cognitive biases have greater space to play where ambiguity is greater; structural prosecutorial independence is needed to an even greater degree regarding such crimes. Such crimes firmly belong out of the chain of command.
Congress should, and eventually I believe will, move all prosecutorial discretion – for all crimes – to military lawyers independent of the chain of command. While commanders should retain the authority to administratively discipline their troops, crimes – given the serious deprivation of liberty and property potentially involved – should be handled by independent and impartial professionals. Professionals should decide, based on independent, impartial, experienced, and accountable judgment, what is and is not criminal and worthy of prosecution.
Second, what about military trial judges in this new dual-track system – why do they still report to their military legal chain of command, whereas Congress has placed the new military prosecutors, for the sake of independence, under civilian secretaries? Shouldn’t military judges be independent too? Military trial judges remain susceptible to careerism affecting decision-making, given that military lawyers only wear judicial robes for a few years before rotating back into the military legal officer assignment and promotion system. Defendants tried in federal criminal court get federal judges with lifetime tenure; U.S. service members get nothing even close; change is long overdue.
Finally, the effectiveness of this new dual-track system (as effective as it can be with the above short-comings) will also depend on the true independence of the new lawyer-prosecutors (called “special trial counsel”). True prosecutorial independence means immunity from all improper influences, including those well beyond that of commanders’ reluctance to prosecute their troops for alleged sexual assaults.
A few voices (largely long-time opponents of the recent military justice reform) have recently raised concern in this regard – purportedly over worry regarding the recent firing of the Army’s new lead special trial counsel by the Army Secretary, claiming his firing represents improper pressure to prosecute sexual assaults. Such concern primarily reflects resistance to the new shift in prosecutorial power rather than pointing to any real vulnerability of the new system to improper prosecutions. There are numerous procedural safeguards to prevent unwarranted prosecutions of sexual assault by military special trial counsel (in contrast, there were no such safeguards for victims whose alleged assailants were for decades protected by the chain of command, with cases never prosecuted). First of all, the conflicts of interest commanders inherently face when wielding prosecutorial discretion (for example, between mission accomplishment and prosecution, or between not prosecuting and career concerns regarding Senate confirmation for their next general officer assignment) are now eliminated by placing the decision in military lawyers working for civilian secretaries, thus allowing military lawyers to make prosecutorial decisions based on the strength of the evidence and demands of justice.
And unlike non-lawyer military commanders who are bound by no ethical code, lawyers have rules of professional responsibility they are required to adhere to; they are legally authorized to only bring charges when probable cause exists per both the Manual for Courts-Martial, and per their individual state ethics rules. (Note: the military services need to update their formal legal rules of professional responsibility for military lawyers; all the services, at least according to published documents, continue to omit the special rules for prosecutors recommended by the American Bar Association and found in state bar codes of ethics; given that military lawyers now exercise prosecutorial charging authority for some crimes, these military rules of professional responsibility should be updated soonest).
Furthermore, the military rules for court-martial (RCM 601(d)(2)) now only allow prosecution when prosecutors have deemed that there is sufficient admissible evidence to convict (a welcome and long-overdue new addition to military criminal law).
Of course the new military prosecutors, like all those who wield prosecutorial authority, should be scrutinized and held accountable for making charging decisions based on facts and law, independent from improper factors such as race, gender, personal motivation, political influences, and command influences. Requiring the new military prosecutors (and commanders who still wield vast prosecutorial authority over a large swath of crimes) to memorialize their decision-making regarding disposition of allegations – for compilation in a database that can be redacted for privacy concerns, studied, and publicly released (similar to what Los Angeles Country District Attorney’s office does for most officer-involved shootings) – would be a healthy procedural safeguard against improper prosecutions (and improper failures to charge).
An Initial Challenge Signals Promising Commitment to Meaningful Change
As briefly mentioned above, the latest tempest in a teapot regarding these new prosecutors’ independence – in the full meaning of the word regarding prosecutorial ethics, meaning free from all improper influences – spilled into the news a few weeks ago when the Army Secretary fired the Army’s new lead special trial counsel, reportedly over a decade-old email (this officer was also accused of unsubstantiated abusive behavior toward a female subordinate). This unprofessional email (as acknowledged by the officer himself), written years ago when he was a senior-ranking defense counsel and sent to subordinate military defense counsel he apparently supervised, bitterly decried military sexual assault prosecutions in general. In it, he denigrated the civilian chain of command, military commanders, as well as Congress for their focus on sexual assault prosecutions. (It should be noted that contemptuous words against Congress constitute a military criminal offense, with no exception for defense counsel, particularly no exception for Lieutenant Colonel defense counsel supervisors who are emailing their subordinates about sexual assault prosecutions in general; if one can’t smell the contempt in this email, one’s sniffer is perhaps plugged.)
While the fired officer can be certainly be forgiven for making passionate claims about Congress and his civilian chain of command while a defense counsel years ago – being a defense counsel is tough, and it’s easy to become jaded while battling uphill for clients – his words matter, particularly when made part of the public record (the former Army officer who accused him of abuse provided a Pentagon advisory committee with his dated email during a public hearing).
His words matter regarding his fitness to be the very first lead special trial counsel for the Army – the first to wield prosecutorial discretion as a lawyer, and not commander, since the Army was created – because they seemed laser-focused on disparaging sexual assault prosecutions as merely being inventions of both the civilian chain of command and lawmakers. How could the Army Secretary keep this lawyer in a brand-new position designed, in large measure, to help overcome the loss of confidence in military commanders’ willingness and capability to prosecute appropriate cases of sexual assault, when by his own words he seemingly implied that all such allegations are false, mere manifestations of “sobriety regret,” and part of “the sexual assault ridiculousness”? Furthermore, this senior officer made such comments not just as any trial-level defense counsel, but as a senior supervising attorney with leadership responsibilities over other uniformed attorneys. As a field grade officer, his email was unprofessional and representative of poor judgment (and darn close to contemptuous).
Does this Army officer’s firing represent an improper attempt by the Army Secretary to sway individual decisions of the new special trial counsel’s office in the direction of prosecution, even when not warranted, as argued by long-time opponents of the current reform? Perhaps defense counsel in future sexual assault cases will make such arguments (and they should, that’s their job; defense counsel will likely also claim that this firing will chill zealous defense advocacy; again, it’s their job to make such claims, regardless how speculative and lacking context.
The reality is more mundane. The reality is also more professional, mature, and emblematic of commitment to impartial justice (as well as representative of real leadership) than critics want to admit.
The Army Secretary needed to ensure that a senior military lawyer without anti-sexual assault, anti-victim, anti-civilian control of the military, anti-Congress baggage – one unblemished by unprofessional public statements indicating all those biases – would lead the new transformation of prosecutorial power in the Army. Confidence in both him, and in the Army’s commitment to fair and impartial charging decisions, demanded his termination. Apparently the Army Secretary, unlike her senior retired military nitpickers, knows that her new lead special trial counsel and their assistant trial counsel are supposed to be both “pursuing appropriate criminal charges of appropriate severity” (not denigrating as ridiculous) along with “exercising discretion to not pursue criminal charges in appropriate circumstances.”
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Hopefully these new attorney-prosecutors will be given the space and independence to fulfill both these obligations while respecting the constitutional rights of service members. Such sound decision-making will not cure the military of its sexual assault epidemic and other personnel failings; however, greater justice always produces dividends in the long run.
IMAGE: Gavel with American flag in the background (via Getty Images)
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